Gun Control's Constitutional Test

Posted
Thursday, February 28, 2013 12:53 pm

By Richard Scribner

The Second Amendment of the U.S. Constitution is short and seemingly clear: "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

A simple statement, understandable in the times and context of the formative years of this country, and, at first reading, not a blanket statement that every man and woman has the right to own and "bear" any firearm they might chose. Think again.

On the face of the words of the Second Amendment, the basis of not limiting or infringing on the "right of the people" - in historical context, mainly ordinary working men available for conscription who would rise to defend the country in a time when it was threatened, i.e., civilians primarily, soldiers occasionally - "to keep and bear Arms" seems predicated on ensuring a "well regulated Militia" "necessary to the security of" the U.S. However, this Amendment has been interpreted by high courts to apply broadly to "individual rights." There is much to suggest that even today with the awful events that have taken place, most devastatingly in Newtown, Connecticut, the Supreme Court might not find laws that restrict gun ownership constitutional. If current Obama Administration efforts to get additional laws restricting so-called "assault weapons" are successful, it will likely be tested in the Court.
It would have been nearly impossible for those who contributed to drafting the constitution and the Bill of Rights, including the Second Amendment, to envisage that the U.S. would become a nation of over 315 million people in 50 States and numerous Territories with a vast military structure and well-armed large professional and trained air, land, and sea forces. Nor could they have imagined the weapons available today.

Yet, the Second Amendment has been essentially enshrined as an unfettered "right" to have almost any firearm. Courts to date have sometimes interpreted the Second Amendment in a manner consistent with that view notwithstanding a controversial 1939 Supreme Court decision that sawed-off shotguns were not covered. While there has been heavy regulation and a civilian owner prohibition of fully automatic weapons for several decades, semi-automatic weapons are legal and some of them have the characteristics that define them as assault weapons.

Early Supreme Court Justice, Joseph Story, serving from 1811 to 1845 and appointed by (Constitutional and Bill of Rights principle architect/author) President James Madison, is quoted as saying that the "right to bear arms has justly been considered as the palladium (i.e., ultimate safeguard) of the liberties of a republic." It is Justice Story's next words, often omitted when he is quoted as above, that are most revealing regarding the manner in which he held that view. He added, "since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." Perhaps a future Supreme Court may look at Justice Story's view again to consider whether such a perspective still holds. Such a review seems unlikely any time in the near future.

Today, many Americans own guns; estimates of how many vary but it is near 50%; reportedly the actual number of firearms in the U.S. is almost as large as size of its population. Hunting, livestock and personal protection, and target shooting are some of the other legitimate reasons for owning guns. Some gun owners believe, as apparently did Justice Story, that they need to have firearms to resist or show they would resist what they fear as possible tyranny from their own federal government as much as from any attempt to impose such rule from outside.

A Congressional Research Service (CRS) analysis noted, "It was not until 2008 that the Supreme Court came down on the side of an 'individual rights' theory. Relying on new scholarship regarding the origins of the Amendment, the Court confirmed what had been a growing consensus of legal scholars - that the rights of the Second Amendment adhered to individuals" notwithstanding the basis seemingly set by its initial phrase.

As the CRS analysis explains, "the Court reached this conclusion after a textual analysis of the Amendment, an examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the Amendment. Although accepting that the historical and contemporaneous use of the phrase 'keep and bear arms' often arose in connection with military activities, the Court noted that its use was not limited to those contexts. Further, the Court found that the phrase 'well regulated Militia' referred not to formally organized state or federal militias, but to the pool of 'able-bodied men' who were available for conscription." The Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that "the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense."

Using this "individual rights theory," the Court struck down a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times. The Court rejected the argument that handguns could be banned as long as other guns were available, noting that, for a variety of reasons, handguns are the "most popular weapon chosen by Americans for self-defense in the home." Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the "core lawful purpose of self-defense."

Notable for the current situation, the 2008 Court stated, in nonbinding, non-precedential opinions that went beyond the facts of the case before it, that the Second Amendment did not limit prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns. The Court also noted that there was a historical tradition of prohibiting the carrying of "dangerous and unusual weapons" that would not be affected by its decision. The Court, however, declined to establish the standard by which future gun regulations would be evaluated.

Perhaps the overall mood of the country today is such that assault weapons, other automatic large capacity rapid fire weapons, and high capacity ammunition magazines might be restricted by law. Reportedly, President Obama's proposal would also require criminal background checks for all gun sales, and closing the longstanding loophole that allows buyers to avoid screening by purchasing weapons from unlicensed sellers at gun shows or in private sales. He asked Congress to reinstate and strengthen a ban on the sale and production of assault weapons that passed in 1994 but expired in 2004. He called for a ban on the sale and production of magazines with more than 10 rounds, similar to those used in Newtown and other mass shootings. By Executive Order, he lifted a ban on the Centers for Disease Control and Prevention from conducting research on gun violence. Since understanding the whole gun violence problem is so important, support for the previous ban on such research might seem ludicrous were it not for the seriousness of the matter.

Opponents have already spoken out strongly; some articulate "slippery slope" arguments to galvanize gun owners to prevent any limits. "Obama, don't take my guns away," read the sign held by a seven year old boy in Louisiana during inaugural weekend. Achieving such a law as Mr. Obama proposes will require a battle in Congress and, unfortunately, be divisive within the country.

What is proposed by President Obama is clearly not nearly enough to deal with all security, psychological, and cultural aspects related to reducing gun violence in our nation which the President has stated he recognizes. But it is a useful start. Ironically, if Mr. Obama is successful, he risks a side effect, hopefully only temporary, of further lowering respect for government and our laws among millions of gun owners in the U.S.

If such a law as proposed is passed, it would be tested in the U.S. Supreme Court. Reading the tea leaves of previous opinions of the Court gives clues as to how such a law might be evaluated by the Justices today. As disquieting as it might be to those who want greater gun control, there are also hints that the Justices could conclude that the Constitution does not support at least some parts of the President's proposal.

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